Johnson et al v. Simon et al

Filing 288

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 9/5/2012.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VIETTA L. JOHNSON, M.D., and DANIEL IVANKOVICH, )
M.D.,
)
)
Plaintiffs,
)
)
vs.
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)
COUNTY OF COOK, ROBERT R. SIMON, M.D., AARON )
HAMB, M.D., and CLIFFORD CRAWFORD, M.D.,
)
)
Defendants.
)
)
)
KAREN NASH, M.D.,
)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF COOK,
)
)
Defendant.
)

08 C 2139
Judge Feinerman

08 C 3648
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Drs. Vietta L. Johnson, Daniel Ivankovich, and Karen Nash brought the first of these two
consolidated suits against Cook County (their former employer) and Drs. Robert Simon, Aaron
Hamb, and Clifford Crawford, alleging First Amendment and Equal Protection Clause violations
under 42 U.S.C. § 1983 and claims under 42 U.S.C. § 1985, Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act, 29 U.S.C. § 206(d)(1). Doc. 1 (all
record citations are to Case 08 C 2139 unless otherwise indicated). Drs. Johnson and Ivankovich
then filed an amended complaint, which alleged the same claims and terminated Dr. Nash as a

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plaintiff. Doc. 16. The same day, Dr. Nash filed her own suit against Cook County, alleging
violations of Title VII and the Equal Pay Act. Doc. 1 (08 C 3648).
The § 1985 claims were dismissed. 2009 WL 331531 (N.D. Ill. Feb. 10, 2009) (Cox,
M.J.). After extensive discovery, Defendants filed a motion for summary judgment on the
remaining claims, Doc. 205, which the court granted in part and denied in part, 2012 WL
2905485 (N.D. Ill. July 16, 2012). Familiarity with that decision is assumed. To summarize,
summary judgment was granted to Defendants on Dr. Nash’s and Dr. Johnson’s termination
claims under Title VII and the Equal Protection Clause, Dr. Ivankovich’s retaliation claim under
the Equal Protection Clause, and Dr. Nash’s and Dr. Johnson’s Title VII hostile work
environment claims; summary judgment was denied on Dr. Johnson’s and Dr. Ivankovich’s First
Amendment retaliation claims, Dr. Ivankovich’s Title VII retaliation claim, and Dr. Johnson’s
and Dr. Nash’s Title VII and Equal Pay Act wage discrimination claims.
Drs. Johnson and Nash have moved the court to reconsider its ruling on their termination
claims under Title VII and the Equal Protection Clause. Doc. 280. In seeking summary
judgment on those claims, Defendants argued that this is a reduction-in-force (“RIF”) case and
that, to prevent summary judgment under the indirect method, Plaintiffs had to establish as the
fourth element of their prima facie case that “similarly situated employees who were not part of
[Plaintiffs’ protected] class were treated more favorably” than Plaintiffs. Doc. 239 at 5.
Defendants asserted that “Dr. Johnson cannot meet her burden to establish prima facie evidence
… that similarly situated employees who were not part of her class were treated more
favorably,” id. at 7, and that “Dr. Nash cannot establish that similarly situated employees who
were not part of the protected class were treated more favorably,” id. at 12. To support their
submission, Defendants argued only that Plaintiffs were not similarly situated to the other
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employees; Defendants did not maintain that Plaintiffs could not prove that those other
employees were not part of the protected class. Id. at 5-9, 12.
Drs. Johnson and Nash responded that this is a mini-RIF case, not a traditional RIF case,
meaning that as the fourth element of their prima facie case under the indirect method, they had
to establish only that “their duties were absorbed by employees not in the protected classes.”
Doc. 265 at 20-21. Plaintiffs pointed to record evidence that their duties were indeed absorbed
by other employees. Id. at 20. The court agreed with Plaintiffs that this is a mini-RIF case, and
did not take issue with their evidence that their duties had been absorbed by other employees.
But the court nonetheless held that Plaintiffs had failed to satisfy the fourth element of their
prima facie case because they had failed to properly present evidence that the employees who
absorbed their duties were not members of the protected class. 2012 WL 2905485, at *11-14.
And because Plaintiffs’ invocation of the direct method also failed, id. at *8-11, the court
granted summary judgment to Defendants on Dr. Johnson’s and Dr. Nash’s Title VII and equal
protection termination claims.
As Plaintiffs correctly maintain in their reconsideration motion, that was error on the
court’s part, because Defendants had not argued that summary judgment could be grounded on a
lack of evidence that the employees who had absorbed Plaintiffs’ duties were not in their
protected class. Because Defendants had not made that argument, Plaintiffs were not obligated
to adduce evidence on that point. See Costello v. Grundon, 651 F.3d 614, 634-35 (7th Cir. 2011)
(“The nonmovant is not required to present evidence on an issue not raised by the movant.”);
Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 736 (7th Cir 2006) (“As a general matter, if the
moving party does not raise an issue in support of its motion for summary judgment, the
nonmoving party is not required to present evidence on that point, and the district court should
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not rely on that ground in its decision.”); Logan v. Commercial Union Ins. Co., 96 F.3d 971, 979
(7th Cir. 1996) (“Only after the movant has articulated with references to the record and to the
law specific reasons why it believes there is no genuine issue of material fact must the
nonmovant present evidence sufficient to demonstrate an issue for trial.”). True, Defendants had
argued that Plaintiffs could not show that “similarly situated employees who were not part of
[Plaintiffs’ protected] class were treated more favorably.” Doc. 239 at 5. But that inquiry
encompasses multiple components: (1) whether the other employees were similarly situated to
Plaintiffs; (2) whether the other employees were members of the protected class; and (3) whether
the other employees were treated more favorably than Plaintiffs. Defendants had focused on
only one of those components—whether the other employees were similarly situated—and that
component was mooted by the court’s determination that this is a mini-RIF case, which does not
require the plaintiff to show that she and the other employees were “similarly situated.” 2012
WL 2905485, at *11. Accordingly, Plaintiffs did not have to present evidence that the other
employees were outside the protected class; under the above-cited precedents, the court was
wrong to fault them for having failed to do so. See Titran v. Ackman, 893 F.2d 145, 148 (7th
Cir. 1990) (“[w]hen a party moves for summary judgment on ground A, the opposing party need
not address grounds B, C, and so on”).
Defendants raised two other arguments to support summary judgment on Dr. Johnson’s
and Dr. Nash’s Title VII and equal protection termination claims. The first was that Drs.
Johnson and Nash did not meet their employer’s legitimate expectations, as required by the
second element of the indirect method’s prima facie case. Doc. 239 at 7-8, 12. The argument is
without merit. “When considering whether an employee is meeting an employer’s legitimate
expectations, th[e] court looks to whether she was performing adequately at the time of the
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adverse employment action.” Dear v. Shinseki, 578 F.3d 605, 610 (7th Cir. 2009). Defendants
asserted that the termination decision “was not based on the individual productivity of doctors,”
and then argued that Plaintiffs were terminated because their departments were less busy than
others and because their duties could be absorbed by other employees, rendering them
nonessential. Doc. 239 at 7 (emphasis added). None of that suggests that Plaintiffs were not
“performing adequately”; at most, it suggests that despite Plaintiffs’ adequate performance, they
were no longer needed. Defendants’ argument therefore goes not to Plaintiffs’ prima facie case,
but to the third step of the indirect method, which requires the plaintiff to show that the
defendant’s legitimate, nondiscriminatory rationale for terminating the plaintiff (the indirect
method’s second step) is pretextual. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 663
(7th Cir. 2006).
Defendants’ other argument is that Plaintiffs failed to satisfy the third step of the indirect
method. Doc. 239 at 6-7, 9-10, 12-13. The argument was answered by the court’s summary
judgment order, which recognized that Plaintiffs had adduced evidence “that Defendants’
explanation for why Drs. Johnson and Nash were terminated is pretextual—that is, that the
explanation is a lie rather than the true reason they were terminated.” 2012 WL 2905485, at *9.
That discussion took place in the section of the order addressing Plaintiffs’ effort to defeat
summary judgment under the direct method, with the court holding that Plaintiffs’ pretext
evidence did not satisfy their burden under that method. But the pretext evidence does come
into play under the indirect method now that it has been shown that Plaintiffs in fact made their
prima facie case.
Accordingly, because the court’s summary judgment order articulated no valid ground
for granting summary judgment on Dr. Johnson’s and Dr. Nash’s termination claims under Title
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VII and the Equal Protection Clause, and because the grounds actually put forth by Defendants
are without merit, Plaintiffs’ motion for partial reconsideration is granted. Defendants’ motion
for summary judgment is denied as to those claims, which will be tried along with the other
claims already found to have survived summary judgment.

September 5, 2012
United States District Judge

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